Cautions When Using an RTI-Based SLD Identification Process

Below are several cautions to be considered when using a Response to Intervention (RTI)–based specific learning disability (SLD) identification process. These were gleaned from policy guidance issued by the U.S. Department of Education and state education agencies, as well as pertinent comments from the literature since issuance of the 2006 federal regulations for the Individuals with Disabilities Education Improvement Act of 2004 (IDEA).

Essential Components of RTI When Used for SLD Eligibility

The U.S. Department of Education does not endorse a particular RTI model. However, the Office of Special Education Programs (OSEP) guidance provides essential components that must be present, including

When evaluating an intervention process to determine if it meets the requirements in 34 C.F.R. §300.307(a)(2), the evaluator should compare the components of the questioned intervention to the essential RTI components mentioned above. As a matter of practice, OSEP does not evaluate school districts’ RTI processes.

Student Progress Monitoring

The IDEA regulation requires data-based documentation of repeated assessments of achievement at reasonable intervals (reflecting formal assessment of student progress during instruction) to determine that underachievement is not due to lack of appropriate instruction in reading or math.2 However, the regulation gives no further guidance regarding acceptable parameters for “repeated assessments” or “reasonable intervals.” In comments regarding the final 2006 regulation, the U.S. Department of Education explained that data, which documents progress, are to be “systematically collected and analyzed”3 and that the term “repeated” is not the same as “continuous.”4 Data, from activities such as regular classroom assessments, may be “minimally sufficient” to meet regulatory requirements, but they are not as research-based as, for example, progress-monitoring tools reviewed and given high ratings by the National Center on Intensive Intervention’s Technical Review Committee.5 When state requirements do not specify more than the IDEA regulatory minimal requirements, school districts have the opportunity to develop local standards that are more explicit and research-based to promote consistent and evidence-based practices.

LEA Phase-in of RTI in States Not Mandating Use

States have varied requirements regarding mandates for the use of RTI for determining student eligibility in the area of SLD. For districts in states that do not mandate the use of RTI, the district may decide to establish a policy that mandates its use. For this option, the district may not phase in implementation even if all schools are not at a full-implementation stage. All schools must implement the process when the district policy goes into effect. However, if the district establishes a policy that permits but does mandate the use of RTI, then all schools would not be required to use the process at one time.6

Comprehensive Evaluation

Use of an RTI process does not replace the requirement for a comprehensive evaluation. Even with RTI, the evaluation must include a variety of data-gathering tools and strategies, which includes the results of RTI activities.7The Illinois State Board of Education (ISBE), in itsguidance to school districts, answered the question of what constitutes a “sufficiently comprehensive evaluation.”8 The agency noted that IDEA requires students to be assessed in all areas related to the suspected disability, including “if appropriate.” The eight specified areas, are also known as domains. The IEP team (and other qualified professionals, as appropriate) use this standard to identify the particular areas of review for the student. Therefore, the determination of “comprehensiveness” is based on each student’s individualized needs. ISBE provided the following guidance for this determination process.

In the past, the required “comprehensive evaluation” was interpreted by most to mean a common battery of assessments for all students suspected of having a particular disability. Now it is anticipated that the data gathered during the RtI process, related directly to the student’s performance in the learning context, should reduce the need for the “common battery” approach to assessments.

In conducting an evaluation, the team may not use any single measure or assessment as the sole criterion for making a disability determination and for determining an appropriate educational program. While a student’s response to scientific, research-based intervention is crucial to disability identification and educational planning, other types of information and assessment data must also be collected throughout the RtI process.

The requirement to collect additional information and assessment data can be addressed through what is commonly called the RIOT (Record review, Interviews, Observation, and Testing) process, which is typically an integral part of the early intervening period. Below are examples of data sources and evaluation tools in each of these four categories that might be included in a full and individual evaluation. The collection of this information and data may occur during the RtI process and/or after the special education evaluation period begins.

Record Review of student work samples, grades, office referrals, etc.

Interviews of teachers, parents, counselors, the student, and others involved in the student’s education

Observation of the student in specific, relevant settings and of the learning environment

Procedures Specifying Use of RTI Prior to Special Education Referral

Districts may not have policies, procedures, or practices with provisions that require a student to receive/complete RTI services prior to granting a request for a student’s special education evaluation. However, it is permissible to have district personnel consider (prior to referral) RtI for students experiencing difficulty in the general classroom. OSEP addressed an inquiry regarding a Texas provision stating the following:

Prior to referral, students experiencing difficulty in the general classroom should be considered [emphasis added] for all support services available to all students, such as tutorial; remedial; compensatory; response to scientific, research-based intervention; and other academic or behavior support services. If the student continues to experience difficulty in the general classroom after the provision of interventions, district personnel must refer the student for a full and individual initial evaluation.9

The agency wrote that it does not believe there is a conflict between the Texas provision and OSEP’s November 2007 memorandum, which clarified that RtI cannot be used as a reason for delaying or denying the evaluation of a student who is suspected of having a disability.10 Thus, for a student experiencing difficulty in general education, school district personnel may “consider” the use of RtI and deny an evaluation request as long as the personnel have no basis to suspect the student has a disability. In this circumstance, the district must provide the parent with prior written notice reflecting the evaluation request and the district’s basis for denying the request. Also, the student’s progress should be monitored and, as noted in the Texas provision, personnel should initiate an evaluation if the student continues to experience difficulty.

Outside Agencies & RTI: School districts have no right to require a community-based early childhood program, such as Head Start, to implement RTI before referring a child for an initial evaluation. Districts cannot reject a referral and delay provision of an initial evaluation because the early childhood program did not implement an RTI process and report the results to the district. This requirement is reinforced by the fact that the SLD classification is rarely applicable to preschool children.11

Private Schools & RTI: If a district uses RTI to evaluate a student suspected of having SLD, IDEA does not require the district to use RTI also for a parentally placed private school student within its jurisdiction. Thus, if a student’s private school does not utilize RTI, the district is neither required to implement RTI nor entitled to deny/delay the evaluation because the private school did not use the process. In this circumstance, the group making the eligibility determination may rely on other information (e.g., private school data permitting analysis of how well the student responds to appropriate instruction) or identify any additional data needed to determine whether the student has SLD or another disability.12 States, however, may require the use of RTI as part of the evaluation process in these circumstances. For example, in guidance to school districts, the Illinois State Board of Education wrote, “When existing data are not available, the district is responsible for collecting necessary data in order to determine a student’s response to instruction and intervention as part of the evaluation.”13

Timeframes for Completing Evaluations for Students Suspected of Having SLD

There are various timeframes applicable to evaluations for students based on the following circumstances: students transferring to a school district with an evaluation in progress; highly mobile children; and evaluations conducted during discipline procedures.

Students Transferring With an Evaluation in Progress

Generally, school districts must complete evaluations within the relevant federal/state time frame, which may be extended by mutual written agreement of the district and child’s parents for students suspected of having SLD (34 C.F.R. §300.309(c)). There are additional considerations when a student transfers with an evaluation in progress to another school district. In this case, the new district is required to promptly obtain parent consent to continue the evaluation, and, absent the following exception, consider the timeframe to be ongoing (applying the relevant timeframe). The exception applies to new school districts making sufficient progress to ensure prompt completion of the evaluation, and the parent/district agree to a new specific time (34 C.F.R. §300.301(d)(2) and (e)).14 In any event, the new district cannot delay obtaining parental consent and completing the evaluation because an RtI process is pending.15 The regulation neither specifies nor has OSEP provided guidance regarding the time frame applicable to transferred students when the prior district’s evaluation time frame expired prior to the student transfer or prompt request/receipt of parental consent. Also, OSEP has not provided guidance regarding the term “sufficient progress to ensure prompt completion of the evaluation.” If states lack regulatory provisions or guidance in these areas, districts may consult with their attorneys to establish reasonable local standards to facilitate consistent practices.

Highly Mobile Children

There are additional evaluation considerations for children who are highly mobile and transfer school districts frequently. It was brought to OSEP’s attention that when some highly mobile children change districts after the prior one began (but did not complete) an evaluation, the new district postpones the evaluation pending implementation of the RtI process. The agency noted that this practice could unnecessarily delay the evaluation of highly mobile children. While the new district may choose to provide interventions while completing the evaluation, it could not delay completion because the student did not participate in the new district’s RtI process. OSEP notes that there are compelling reasons to complete evaluations and eligibility determinations for highly mobile children “well within” the applicable time frame, and strongly encourages school districts to complete evaluations of highly mobile children within “expedited time frames (e.g., within 30 days) whenever possible, consistent with each highly mobile child's individual needs.” Highly mobile students experience recurring educational challenges to a much greater degree than other students, and the special education and related services available under IDEA are critical to helping eligible highly mobile students with disabilities meet these educational challenges.16

Evaluation During Discipline Procedures

If an evaluation request is received for a student with an out-of-school suspension meeting the criteria of a disciplinary change in placement,17 district personnel must expedite the evaluation.18 The requirement for an expedited19 evaluation applies to districts using the RTI process for determining SLD eligibility, and personnel cannot use the RTI process as a justification for not expediting the evaluation. When such a student has been involved in the RTI process prior to the suspension, sufficient data may have been collected previously to facilitate an expedited evaluation. When the student has not been involved in the process, the district needs to rely on other assessment tools and strategies to ensure that the evaluation can be conducted in an expedited manner.”20 Under some circumstances, district personnel are deemed to have knowledge that a student has a disability even though the student has not yet been determined to be eligible for special education.21 Personnel are not deemed to have such knowledge solely because a student has been receiving RTI prior to the consideration of the disciplinary action.22

IDEA’s requirements pertaining to the availability of independent educational evaluations (IEEs) at public expense pertain to those a parent requests because she or he disagrees with a completed evaluation.23 If a parent requests an IEE during the RTI process and prior to the completion of a special education evaluation, the district is neither obligated to review nor required to pay for the IEE. Under these circumstances, the district may deny the IEE request for reimbursement without requesting a due process hearing. This outcome applies also to an IEE privately obtained that concludes a student has SLD based on a severe discrepancy or other analysis.24

Implications Relating to Inadequate Implementation of RTI

The Center for Educational Effectiveness, Inc., conducted a study of recent educational literature and existing rubrics/frameworks that focus on the practice of effective teaching. From this analysis came the following list of six core, essential practices of high-quality teaching and learning that cut across all content areas and grade levels. The teacher

If general education instruction does not reflect high-quality teaching and learning, it can be difficult to determine whether a student’s low achievement is internal to the individual or a consequence of the poor instruction. “As an unfortunate result, students with SLD may be difficult to identify reliably unless general education instruction improves. In grade levels and content areas where evidence-based interventions are limited, it also may be difficult to verify intervention quality.”26 This issue is similarly problematic for English language learners (ELLs), for whom it may be difficult to differentiate SLD from characteristics of second language acquisition.27 Because of these difficulties, there may be several consequences.

Overidentification.Students may be overidentified as having SLD, especially students who are African American or ELLs, because they are disproportionately referred for special education evaluation due to their underachievement and a lack of appropriate, sufficiently analyzed instruction (as required by 34 C.F.R. §300.306).

Delayed Referrals.Students may “languish in ongoing tiers of general education” prior to an evaluation referral when teachers are unable to differentiate between a lack of sufficient progress because of a suspected disability or because of inadequate instruction. When students participate in unsuccessful tiers of interventions over an extended period of time, both students and parents may become frustrated, creating a negative climate for teaching and learning.28

This issue has large implications for schools in which a large portion of students are not meeting standards on statewide assessments, thus meeting the first prong for SLD eligibility (34 C.F.R. §300.309(1)(1)). The ISBE addressed this issue in a technical assistance document and recommended the following actions:29

Assess curriculum:Assess the degree to which the curriculum is scientifically based and implemented with integrity, and matches student needs.

Remediate deficiencies: Document plans to remediate curriculum deficiencies found through these processes in district and school improvement plans.

Intensify instruction: Consider intensifying instruction for all students with low achievement so that general educators at Tier 1 utilize approaches that would otherwise be considered to be Tier 2/supplemental instruction in a high-achieving district/school.

District norms: Establish universal screening systems to provide tiered early intervening services, monitor integrity and progress of interventions, and set local data-based decision making rules to compare individual students against age-level peers within the district/school in addition to grade level standards.

19 The U.S. Department of Education has not specified a precise timeline for an expedited evaluation because the need for collecting additional information may vary; however, the evaluation "should be conducted in a shorter period of time than a typical evaluation conducted pursuant to section 614 of the Act." 71 Fed. Reg. 46540, 46728 (Aug. 14, 2006).